Kennedy v Shire of Campaspe  VSCA 47
In this recent decision, the Court of Appeal grappled, for the first time, with the test for the grant of leave for an appeal under the new civil appeals regime.
In November 2014, a new regime was introduced for civil appeals in the Victorian Court of Appeal. The changes were introduced by the Courts Legislation (Miscellaneous Amendments) Act 2014 (Vic) and took effect from 10 November 2014. The key feature of the new civil appeals regime is the requirement that (with a few exceptions) leave to appeal be sought for all civil appeals (see section 14A of theSupreme Court Act 1986 (Vic)). The requirement for leave applies whether the decision the subject of the appeal is final or interlocutory.
In Kennedy v Shire of Campaspe  VSCA 47, the Court of Appeal grappled, for the first time, with the test for the grant of leave for a civil appeal under the new regime.
Under the new regime, the Court of Appeal “may grant an application for leave…only if it is satisfied that the appeal has a real prospect of success” (section 14C of theSupreme Court Act 1986 (Vic)).
The Court of Appeal noted that the analogous phrase “no real prospect of success” appears in section 63 of the Civil Procedure Act 2010 (Vic) (concerning when a Court may give summary judgment) in respect of which the Court of Appeal has recently applied a “real” as opposed to “fanciful” formulation (see Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd  VSCA 158). That formulation has also been applied in respect of Rule 52.3(6) of the Civil Procedure Rules 1998 (UK) which also concerns leave to appeal.
The Court of Appeal contrasted the test for leave under s 14C of the Supreme Court Act with the test for special leave to appeal to the High Court, and noted that, in contrast, the High Court may have regard to any matters that it considers relevant and must have regard to certain other matters: namely, whether a question of law or public importance is involved or in respect of which the High Court is required to resolve differences of opinion as to the state of the law, and whether the interests of the administration of justice require consideration by the High Court.
The Court of Appeal concluded that the test for leave under s 14C of the Supreme Court Act should be consistent with the Court’s interpretation of section 63 of the Civil Procedure Act 2010 (Vic). It held that Court of Appeal may only grant leave where the appeal has a real, as opposed to a fanciful, chance of success.
Unlike an application for special leave to appeal to the High Court, the Court of Appeal cannot grant leave if an appeal does not have a real prospect of success, even if there is some other compelling reason why the appeal should be heard.
The Court of Appeal noted that the use of the permissive “may” in section 14C suggests a residual discretion to refuse leave. That is, even if it is satisfied that an appeal has a real prospect of success, the Court may nevertheless refuse to grant leave in the exercise of its discretion. Different considerations may play a part in the exercise of the Court’s residual discretion to refuse leave, such as where no substantial injustice will be done if the decision stands. The Court of Appeal suggested that this may be particularly so when the appeal is from an order as to practice and procedure.